How Attorney General Barr Misled America

Now that a redacted version of the Mueller Report is publicly available, it is apparent that Attorney General Barr has been misleading the American people about its findings.

Let me count the ways. Some are omissions. Some are evasions or distortions. Some appear to be deliberate untruths.

Attorney General William Barr (AP Photo/Patrick Semansky)

The Attorney General’s Letter Of March 24

Attorney General Barr received the 448-page Mueller Report on March 22 and two days later, on March 24, issued a 4-page letter which purported to be a summary of the main findings of the report. In a subsequent letter, on March 29, Barr issued another letter stating that his March 24 letter was not intended to be a summary of the findings of the Mueller Report.

Nevertheless, for almost three weeks between March 24 and April 18, Barr’s letter of March 24 constituted the de facto findings of the still-unavailable report and became the basis for claims of “Game Over” by President Trump and his fellow Republicans. Nevertheless, the claims in Barr’s letter of March 24 turn out to be questionable, in the light of the report itself.

“No Collusion”?

The first main finding of the Mueller Report that Barr quoted on March 24 was the sentence-fragment:

[t]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

This quote led to weeks of celebration by President Trump, who declared over and over again, “No collusion!” Yet Barr’s letter of March 24 failed to reveal what came before this sentence-fragment. Now that we have the report, we can see the context (in italics):

Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

In other words, the report found that Russia did intend to help Trump become president and the Trump campaign did welcome that help. The report details scores of contacts between the Trump campaign and the Russian government, including:

A public request by Trump himself to help find Hillary Clinton’s missing emails, which was immediately followed by Russian hacking of Clinton’s email system.

Sharing of polling data and discussion of campaign strategy by Paul Manafort, the Trump campaign chair, with representatives of the Russian government.

Meetings with representatives of the Russian government in which the Trump campaign welcomed the prospect of receiving negative information on Hillary Clinton.

The report found, not that there was no collusion between Trump and Russia, but rather that there was insufficient evidence to prove a criminal conspiracy beyond a reasonable doubt.

Mueller Chose A Narrow View Of Conspiracy Law

In reaching this conclusion, the Mueller Report adopted a strikingly narrow view of the law of criminal conspiracy—a view generous to Donald Trump.

Guilt in a criminal conspiracy doesn’t require that every participant in the conspiracy commit a criminal act. All it requires normally is that there is an agreement by two or more people to commit a criminal act and that at least oneof the co-conspirators commits an overt act towards the accomplishment of the conspiracy. (In this case, parts of the Russian government committed many criminal acts; the Trump campaign was aware of them and welcomed them.)

Nor is it necessary that the goal of a conspiracy has been successfully accomplished: it is enough if at least one overt step has been taken towards implementing the conspiracy. (In this case, the conspiracy was not only implemented. It was successful: the Russian government did help Trump get elected.)

Nor is it necessary that co-conspirators know the identity of the other members of the conspiracy.

Nor does the conspiracy have to be planned in secret.

Nevertheless, the Mueller Report seems to have adopted an interpretation of the law of conspiracy in which they were looking almost for some kind of explicit agreement between the Trump campaign and the Russian government. Here, as in other areas, Mueller bent over backward to be fair to Trump.

Even more problematic is the conclusion in Barr’s letter of March 24 that

the Special Counsel therefore did not draw a conclusion - one way or the other – as to whether the examined conduct constituted obstruction of justice.”

Barr’s letter states that “the report sets out the evidence on both sides of the question and leaves unresolved what the Special Counsel views as ‘difficult issues’ of law and fact concerning whether the President's actions and intent could be viewed as obstruction,” as if implying internal disagreements among the Mueller team.

Barr continued:

while this report does not conclude that the President committed a crime, it also does not exonerate him.

The Special Counsel's decision to describe the facts of his obstruction investigation without reaching any legal conclusions leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime…

Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel's investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.”

Here too, this finding led to weeks of celebration by President Trump, saying over and over again, “No obstruction!” Yet Barr’s letter of March 24 had failed to reveal what came before the sentence-fragment. Now that we have the report, we can see the context of the sentence-fragment (in italics):

…if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President's actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

Elsewhere in the report, Mueller makes clear that there were ten striking episodes of obstructive conduct by the president. In fact, Mueller spends several hundred pages detailing the sustained effort by Trump to derail the Russia investigation, including an effort by the president to have him removed.

These actions ranged from efforts to remove the Special Counsel and to reverse the effect of the Attorney General’s recusal; to the attempted use of official power to limit the scope of the investigation; to direct and indirect contacts with witnesses with the potential to influence their testimony. Viewing the acts collectively can help to illuminate their significance.”

But Mueller felt bound by the Office of Legal Counsel (OLC) guidance that a sitting president cannot be charged with a crime. The report points out that there is another path:

With respect to whether the President can be found to have obstructed justice by exercising his powers under Article II of the Constitution, we concluded that Congress has authority to prohibit a President’s corrupt use of his authority in order to protect the integrity of the administration of justice. ...

The conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.”

Mueller also said that he declined to reach a decision on obstruction charges in part because he did not want to “potentially preempt constitutional processes for addressing presidential misconduct.” He is referring here to impeachment, as a footnote at the end of the sentence makes clear.

Barr’s Press Conference Of April 18

At the press conference on April 18, Barr said, ““Rod Rosenstein and I asked Robert Mueller when we met with him on March 5, whether he would have made obstruction a crime but for the OLC opinion. He made it clear several times that it was not his position.”

Yet this is the very opposite of what the Mueller Report itself says. Unless Mueller abruptly changed his mind after writing the report, it is hard not to conclude that Barr is misstating Mueller’s position.

When asked why he decided to take it upon himself to decide whether Trump committed the crime of obstruction, Barr replied:

Our responsibility is to determine whether there was a crime, yes or no. We don’t collect information just to throw it out to the public. We collect this information for the purpose of making the prosecutorial decision. We felt that because the Special Counsel did not take that decision, we felt that the Department of Justice had to.”

Barr thus ignored the position taken by the Mueller Report itself that there is another more appropriate path: the Congressional power of impeachment.

In making his apparent decision that no crime of obstruction was committed, Barr was ignoring the OLC guideline that there is no power to charge a sitting president with a crime. If there is no power to charge with a crime, it is hard to see how there can be a power to absolve from a crime.

Trump’s Collaboration With Mueller

At the news conference, Barr stated:

The White House fully cooperated with the Special Counsel’s investigation, providing unfettered access to campaign and White House documents, directing senior aides to testify freely, and asserting no privilege claims. And at the same time, the President took no act that in fact deprived the Special Counsel of the documents and witnesses necessary to complete his investigation.”

This is an extraordinary claim, given Trump's incessant attacks on the Mueller’s investigation for two years on an almost daily basis. Trump declined interview requests from the special counsel and his written answers to questions were mainly a repetition of “I don’t remember.”

An entire volume of Mueller’s report—almost 200 pages—is dedicated to the 10 episodes of potential obstruction, including efforts by Trump to oust Mueller and curtail his investigation, Trump’s efforts to conceal the purpose of the Trump Tower meeting, and actions taken by the president that look like witness tampering (such as his frequent talk of presidential pardons and “rats”). To call this “full cooperation” is ridiculous.

Where To From Here?

With five Congressional committees gearing up to investigate further, and at least 14 ongoing criminal investigations (of which 12 are still redacted), most Republicans remain silent. Yet the first stirrings of civic responsibility have begun. Republican Senator Mitt Romney has now declared himself "sickened by Trump’s behavior” as outlined in the report. And prominent Republican George Conway has written an OpEd in the Washington Post that "Trump is a cancer on the presidency: Congress should remove him."

Overall, it is likely that neither the Mueller Report nor Barr’s conclusions will be the end of the questions about collusion or obstruction. Instead, now that we have a clear delineation of what happened, we will see the beginning of the assessment of the implications.